Here's my suggestion to politicians. If you want to plot the takeover of the world without people finding out about it, don't do it in a Newmarket Cafe.

For what was meant to be a short photo-op designed to remind the good folk of Epsom of their duty to Party and Nation, the cup of tea between John Key and John Banks has all turned a bit Alice in Wonderland.

We've got two politicians who invited the nation's media to come and observe them together complaining that their privacy has been invaded because rather than just looking, at least one media representative listened to them as well. And we've got a newspaper telling its readers that the contents of that conversation are really, really interesting ... but not so interesting that they will publish it.

For what it is worth, I think there's a lot of bluster and rhetorical overkill on both sides.

I strongly doubt Johnathan Milne's claim in the Herald on Sunday that the recording "could yet throw a rocket into this election campaign. It is a game-changer." If it was so important, then it would have been splashed all over the paper and damn the consequences.

I'm betting all it contained was a bit of mutual reassurance regarding the value each participant regards the other as having, with John Key in particular indicating how important he sees ACT in the post-election environment - especially if Winston Peters manages to pass 5% of the vote. Sure, Key may have been more open about the likelihood of this happening than he would be in a public Q&A session, but it's hardly "a game-changer" that he thinks ACT likely will be needed for a post-election majority.

So, yes ... I'd read a story about it. But only if there is no more information about Beiber's babymama to hand.

Equally, Steven Joyce's description of the recording of the two Johns' conversation as "a deliberate News of the World-type covert operation” is a bit silly. Just so we remember - the News of the World routinely hacked into the telephones of hundreds of people, including a teenage murder victim, in order to gather material for its stories over a number of years. The Herald on Sunday, at the very worst, deliberately left a microphone in a bag beside two politicians who had just finished a public news event they knew was being recorded ... and then didn't publish what they heard from it.

So, you know. A bit of perspective, please.

However, John Key's decision to officially complain to the police about the recording has both boosted the stakes and ensured the story will keep running. I suspect that decision is motivated by a combination of principle and advantage seeking.

In terms of principle, it's every politician's worst nightmare to have a live microphone catching their words while they think they are off the public record. Just ask Gordon Brown or George Bush. So it is important for him to try to nip in the bud the news media's (allegedly unlawful) attempt to catch him out in this way.

In terms of advantage seeking, claiming you're the victim of an illegal and unethical sting is a great way to justify refusing to permit the recording being made public. And seeing as National's election strategy is not having to talk about the election, it's far better to have the discussion focused on whether the news media is acting properly than on, well, anything else really.

However, now the police are involved, we have to look at the legal issues. Or, I do, anyway. Its my failing, I know, but what am I going to do? Change? Not likely ... .

Over at Media Law Journal, Steven Price already has done a nice job of setting out the relevant legal issues. I'm simply going to steal his discussion of the criminal law aspects, seeing as that is what is now most in question ... but you should go over and read his whole post to see what other issues may be raised.

Steven notes:

It’s a crime to intentionally intercept a private communication using an interception device. A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:

does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.

Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.

The only issue, then, is whether the communication was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening. Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.

If it could be established that he did know, then he has committed an offence. The paper would then also commit an offence if it published the contents of the communication without the consent of one of the parties (interestingly it only needs the consent of one).

On the other hand, if he didn’t know, then he’s in the clear and the paper can publish at whim and not breach the criminal law.

There's just a couple of things I'd add to all this. First of all, I really have my doubts whether this tete-a-tete can be classified as a "private communication". There is the point Steven makes ... whilst the two Johns were chatting away, there were a myriad of cameras pointed directly at them through the cafe window (as well as microphones shoved up against the glass in an effort to catch their words). Surely that fact raises real doubts as to whether the two Johns "ought reasonably to [have expected] that the communication may be intercepted by some other person not having the express or implied consent of any party to do so."

Furthermore, the "private" chat between the two of them occured straight after the news media had been inside the cafe filming and audio recording the two of them sitting together. The media were then told to leave the cafe - I assume by John Key's media minders, but am prepared to be corrected on this - and all-but-one member took their audio recorders with them.

But why did they have to? The PM's media minders have no right to say who can and can't be in a public cafe, just because the PM happens to be in it. And the media actually do not have to do what the PM's media minders tell them (even if they in practice do so). So if a member of the media, intentionally or otherwise, ignores the minders' instruction to stop recording the PM's words uttered in a public cafe following a media event, isn't that the PM's look out? Or, to put it another way, shouldn't John Key "ought reasonably to [have expected] that [a conversation held in a cafe straight after a press event] may be intercepted by [a member of the press] not having the express or implied consent of any party to do so"?

So this initial point - was this a "private communication" that it is illegal to intercept - seems decidedly dicey to me. And if it's not a "private communication", then its not illegal to intercept it.

Then there is the second point Steven raises: whether the recording of the conversation was intentional or not. Because it is only an intentional interception of a private communication (and subsequent publication thereof) that is illegal.

Here things degenerate into a bit of a he-said/he-said situation. Steven Joyce's press release claims that the Herald on Sunday deliberately arranged to record the conversation - not even that the cameraman who did so spotted an opportunity and leapt at it on the spur of the moment. Contrariwise, that cameraman was on Checkpoint this evening giving his account of the recording. Needless to say, it is that there was an accidental mistake made in the jumble of the media scrum and he didn't realise what had happened until after the fact.

Now, I don't know which of these accounts is "the truth". But in terms of the legal position, that doesn't matter much. Because, in order to show that a crime has been committed, the police would have to demonstrate beyond a reasonable doubt that the cameraman's account is false. And I'm prepared to go out on a limb and say that, absent something like a written set of instructions from the Herald on Sunday to the cameraman, they won't be able to do so.

Consequently, if it can't be shown (beyond a reasonable doubt) that the cameraman intended to record the conversation, then there is no crime here. And if there is no crime by the cameraman when recording the conversation, then there is no crime involved in publishing it either.

But don't trust me on this. I used up my allocation of being right in my last post.

Comments (9)

Anyone checked the CCTV? Does that have audio? Is that publishable if it exists?

If there were CCTV, would its presence (even if you can't make out the conversation) imply the exclusion "...ought reasonably to expect that the communication may be intercepted by some other person ..." applies?

Or rather not so interesting that they will publish at the first opportunity, but rather will publish a teaser on one day (say November 13) and publish (with increased sales) the full thing at the next available opportunity (say November 21). After the rest of the media has helpfully spent a week hyping the issue.

Possibly. But having taken such an "ethical" stand, I think it'd be hard for the HoS to now turn around and say "actually, there is enough of a public interest argument to justify release." Unless, of course, they say the furore over what is in the recording now justifies ending speculation ... which would be dodgy as, I reckon.

So - long story short, if the HoS does try this trick next Sunday, I'll be writing a scathing post denouncing them. There ... that should be enough to put them off.

My concern is that this was, at the end of the day, an intercepted conversation. When asked for privacy the conversation was none the less recorded. The mike was 'discovered' on the table and the person who recorded it was taping this event. He claims he was unaware of what was recorded but instead of destroying it after being refused permission to use it he sold it to HoS. I think their needs to be a stick in the dirt somewhere. I suggest it becomes interception when the communication is dealt with inappropriately. In this instance when it was sold or relayed after privacy had been requested.